A judgment rendered early this year by the Thessaloniki 1st
Instance Court continues in the line followed by a series of earlier decisions,
which apply domestic law even when foreign law should have been applied, in
accordance with the Rome II Regulation
[Thessaloniki 1st Instance
Court Nr. 126/2016, published in the data base ISOCRATES (Athens Bar Association)].
THE FACTS: The applicant is a Romanian citizen, living in Craiova.
He is a driver by profession, working in the field of transportation. The 1st
defendant is also a citizen and resident of Romania, actually a colleague of
the applicant. In the course of their occupation, they were ordered to load a
quantity of fruits from Greece and return to Romania. The defendant was sitting
on the wheel, while the applicant was in the third (back) seat. On their way
back and within the administrative region of Thessaloniki, an accident occurred.
The defendant lost control of the vehicle and crushed the track outside the
highway. As a result, a third person within the track (sitting next to the
driver) was killed, and the applicant was severely injured.
The applicant initiated summary
proceedings against the driver (1st defendant), the owner of the
vehicle, and the Motor Insurers’ Bureau (M.I.B.), which is a legal entity of private
law based in Athens, supervised by the Bank of Greece. He requested damages for
economic loss and additional expenses caused because of the accident. At the
hearing, the applicant withdrew the proceedings with respect to the driver and
the truck owner.
THE RULING: The Thessaloniki court
assumed jurisdiction on the grounds of Article 3 in conjunction with Article 35
Greek Civil Procedure, i.e. the provisions granting international jurisdiction
to the place where the harmful event occurred. It then examined the issue of
applicable law. In this respect it referred to the Rome II Regulation, on the law applicable to
non-contractual obligations. It first mentioned Article 4.1, by repeating
its wording. Then it went forward, invoking Article 4.2 Rome II Regulation, which
reads as follows: where the person claimed
to be liable and the person sustaining damage both have their habitual
residence in the same country at the time when the damage occurs, the law of
that country shall apply. The court underlined that
it has no discretionary powers as to its application, i.e. it is obliged to
apply the above provision, unless it is satisfied that the escape clause of
Art. 4.3 Rome II Regulation should prevail.
light of the above, the Thessaloniki court concluded that by applying Art. 4.3,
the case is more closely connected with Romania: Both the driver and the victim
are Romanian citizens living in Romania; the vehicle is registered in Dolj
county, Romania; and the green card was issued by Romanian authorities. Hence, Romanian
law should be applied in the case at hand. However, due to the urgency of the
matter, the court opted for the application of Greek law, because it was not
aware of the pertinent provisions under Romanian law, nor it was possible for
the court to become aware of it on short notice, i.e. without ordering the
production of relevant evidence, thus delaying excessively the pending
the reasons stated above, the Thessaloniki court proceeded to the examination
of the merits, applying fully and exclusively domestic law.
COMMENTS: Two points deserve some closer
look in the decision of the court.
Although the court was right in accepting its
jurisdiction, its omission to refer to the provisions of the Brussels I bis
Regulation leaves a bitter taste in regards to the preparedness of Greek courts
to examine cases with cross border elements on the basis of the proper /
On the other hand, the court was much more
knowledgeable regarding the conflict of laws rules of Rome II Regulation. The analysis
made by the court with respect to Article 4 was impeccable. What probably strikes
the attention of the reader is rather the end-result, i.e. the application of
Greek law for the reasons stated above. This is however a path followed almost
religiously by Greek courts over the last decades. In most of the decisions
reported, the courts include an additional argument, namely that the foreign
law would presumably not deviate significantly from domestic legislation.
Legal scholarship supports almost unanimously this
position. There are only some suggestions, that courts should exploit all
available means and exhaust all possible sources of information, especially by
making use of technological tools, in order to reach foreign law provisions
applicable in the case under dispute.
A final remark on this point would go towards the
direction of Article 14 Rome II Regulation. The court omitted to make reference
to Art. 14.1 [freedom of choice by the parties]. It is not clear by the text of
the judgment, whether the parties invoked Greek or Romanian law. Usually Greek
lawyers tend to refer to the provisions of their jurisdiction, as most probably
done by other colleagues around the globe. Hence, if no issue of applicable law
was raised by the parties, the court could have easily apply directly domestic
law, without passing through the thorny corridors of Article 4 Rome II